Tey Kim Seng v Perbadanan Pengurusan Octiville Condominium (JA-11BNCVC-7-05/2019)

This is an appeal against the decision of the Learned Magistrate given on 9 May 2019 that allowed the Writ of Summons and Statement of Claim by the Respondent/Plaintiff. The Appellant/Defendant is to pay the Respondent/Plaintiff the sum of RM40,959-66 at 30/4/2018 and an interest of 10% per annum to be calculated from 1st May 2018 until the full and final settlement.

The Respondent/Plaintiff is the Management Corporation for the Condominium Octiville, Persiaran Seri Alam, 81570 Masai, Johor formed under the Strata Management Titles Act 2013.

The Appellant/Defendant is the owner of a Unit known as A3-02- 04, Topaz Block, and Octiville Condominium.

On 18/6/2017, the Respondent/Plaintiff through its solicitors Messrs Tea, Kelvin Kang & Co sent a Letter of Demand dated 15/6/2017 to enclosing Form 20 dated 8/6/2017 under the Strata Management Act 2013 and Strata Management (Maintenance and Management Regulations 2015) to demand the outstanding sum of RM53,065-89 (as of 31/5/2017.).

The Respondent/Defendant alleged that the Appellant/Defendant has failed, refused and/or neglected to comply with the said Notice of Demand on 11/9/2017 the Respondent/Plaintiff sent another Notice of Demand enclosing another Form 20 Strata December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 3 Management Act 2013 and Strata Management (Maintenance and Management) Regulations 2015 to the last known address of the Appellant/Defendant to demand the outstanding sum of RM54,954-80 (The sum owed as of 31/7/2017). The claims of the Respondent/Plaintiff are as follows: i. The amount owed as at 30/4/2018; ii. The interest on the amount owed at 10% per annum calculated from 1st May 2018 until full and final settlement. iii. Cost; iv. Other reliefs deems fit and just by the Magistrates Court.

The Learned Magistrate found the Respondent/Plaintiff succeeded in proving its case and ordered as for the Orders in the introduction paragraph with the cost of RM8,218-08.

The issues in this appeal may be enumerated as follow:

The Respondent/Plaintiff claims for the water bill was ultra vires the jurisdiction of the Respondent.

The Notice of Demand in Form 20 Strata Management Act 2013 is null and void and of no effect.

The Notice of Demand as per Form 20 and the Writ of Summons are contradictory.

The Respondent/Plaintiff failed to prove the claims against the Appellant/Defendant.

The Octivelle Condominium was never maintained properly and is in a very bad state. December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin

The failure of the Magistrates Court to admit in evidence the receipt of payment made on 17/7/2007 amounting to RM25,000-00 is a serious miscarriage of justice. [8] We shall address the issues accordingly

The Respondent/Plaintiff claims for the water bill was ultra vires the jurisdiction of the Respondent [9] The Respondent/Defendant sent the Notice of Demand as per Exhibit P18 and which is found in the Appeal Record Volume A and B at pages 31-46. The law that governs this is the Strata Management Act 2013 whose preamble provides as follows: “An Act to provide for the proper maintenance and management of buildings and common area and for related matters” [10] This Court is duly bound to give effect to the effect to the purpose on the statute as per Section 17A Interpretations Act 1948/67 and GULA PERAK BHD v. DATUK LIM SUE BENG AND OTHER APPEALS [2019] 1 MLRA 345. The function of a court when construing and Act of Parliament is primarily to interpret the statue in order to ascertain what the legislative intent is; and this is primarily done by reference to the words used in the provision. Crease on Legislation (9th edn 2008)at p 611 states: “The cardinal rule for construction of legislation is that it should be construed according to the intention expressed in the language used. So, the function of the Court is to interpret legislation December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 5 “according to the intent of them that made it” and that intent is to be deduced from the language used” Now, Section 77 Strata Management Act 2013 provides that

Each proprietor shall be liable under such guarantee referred to in subsection (1) only for such proportion of the money so incurred as the share units of his parcel or the provisional block bear to the aggregate share units.

Where any proprietor has not discharged of fully discharged his liability for the purpose of subsection

(1), the management corporation shall be entitled to recover from the proprietor in a Court of competent jurisdiction or before the Tribunal as a debt due to it.. [11] The key phrase is “The payment of any amount lawfully incurred by the Management Corporation and “be guaranteed by the proprietors” [12] What is then “the amount lawfully incurred”? [13] As the phrase suggested, it is: i. an amount of money; ii. incurred by the management corporation or subsidiary management; iii. in the course of exercise of any of its power/function/duties/obligations; iv. it is lawfully incurred December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 6 [14] Is the water bill of a parcel lawfully incurred by the Management Corporation. The answer lies in the arrangements of payment. The answer lies in the arrangements of payment. The conditions to fit in the “lawfully incurred” are as follows: i. The Respondent/Plaintiff is the registered consumer with the Syarikat Air Johor (water supplier for the supply entire condominium. ii. The Respondent/Plaintiff collects the payment for water supply for the entire condominium and in turn, pays the Syarikat Air Johor for the water supply to the condominium. iii. If the Respondent/Plaintiff neglects, fails or refuses to pay Syarikat Air Johor, then Syarikat Air Johor is at liberty (subject to the relevant laws and regulations) to cut of such water supply. [15] That being said, the Respondent / Plaintiff is responsible to ensure a continuous water supply to the condominium as there is no allegation that water supply to the condominium has ever been cut off , I take it that the water supply has always be in a steady flow since the opening of the condominium for human occupation. Now, if that is the case, the amount unpaid by parcel/unit owners must have been paid by someone or else Syarikat Air Johor (being the water supplier) would have ceased supplying water to the chagrin, no doubt and great hardship of other, no doubt paying parcel/unit owners and/or tenants and/or occupants. Unless proven to the contrary, the only party that been bear such burden is the Management Corporation which now claims the said sum from the Appellant/Defendant. December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 7 [16] Hence, it is the considered view of this Court that the water bill is now within the meaning of “any amount lawfully incurred by the Management Corporation”. [17] I also take note that the Appellant/Defendant did not dispute the water was and still is flowing and the bills were unpaid. The arguments advanced by the Learned Counsel for the Appellant/Defendant is the water bills were not within the jurisdiction of the Management Corporation. [18] I am in total agreement with the case of PERBADANAN PENGURUSAN ENDAH PARADE v. MAGNIFICIENT DIAGRAPH SDN BHD [2013] 4 MLRA where the Court of Appeal ruled as follow : “[34] The core duties and functions of the Management Corporation are of course concerned with the management and the proper maintenance of the common property, as seen in Section 43(1)(a) where it is stated: “(a) to manage and properly maintained the common property and keep it in a state of good and serviceable repair...” [35] ...In this respect, we agree with the proposition advanced by the Respondent that the Management Corporation as a body incorporated under statute can only levy payments which are mandated by the statute. It will be ultra vires its powers for the Management Corporation to levy payments which are not sanctioned by the statute. [19] Since this Court ruled the said water bills were within the meaning of the phrase “amount lawfully incurred” therefore it follows that the sum due and payable is sanctioned by statute. December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 8

The Notice of Demand in Form 20 Strata Management Act 2013 is null and void and of no effect [20] The requirement under the law is that there must be a written Notice demanding payment of the sum due within the period as may be specified in the notice. Further, the due date should not be less than two weeks from the date of service of the said notice (see Section 78(1) Strata Management Act 2013). [21] During the course of the trial, the Learned Counsel for the Appellant/Defendant did not cross-examine PW1 on the legality of the notices. [22] The Principle of Law on cross-examination and its effects, is applicable to Criminal Law as much as it does to Civil Law. In WONG SWEE CHIN v. PP [1981] 1 MLJ 212, the Federal Court ruled that the failure to examined a witness tantamount to acceptance of the evidence. [23] Hence, failure to challenge the Notice of Demand and Form 20, tantamount to the acceptance of both forms and their contents. [24] Form 20 is a statutory from. It is provided for, in the statutes. The use of which is governed by Regulation 31, Strata Management (Maintenance and Management) Regulation 2015 (P.U (A) 107/2015 which reads: Any written notice demanding payment of any sum due by a proprietor which is required to be served under subsection 78(1) of the Act shall be in Form 20. December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 9 December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 10 [25] It has been argued that the Respondent conceded to the issue raised by the Appellant in the Court below. In R V FRANCO [2003] SASC 140 the Court of Cross Appeal, South Australia ruled that a trial judge is not bound by the prosecutors’ formulation of the case. Hence, likewise, the Learned Magistrate was not bound to accept the concession given by the Respondent/Plaintiff’s Counsel. (see PP SAARI JUSOH [2007] 2 CLJ 197). [26] It is the view of this Court, notwithstanding of the concession by parties on the said Notice of Demand and Form 20, they are good in law and are applicable and enforceable as provided for in the Act. [27] I noted the arguments put forth by the Learned Counsel for the Appellant/Plaintiff that Section 59 of the Strata Management Act 2013 (the Said Act provides for as duties and powers of the Management Corporation. I reproduced the provision below for ease of reference. Section 59 59 Duties and powers of management corporation

The duties of a management corporation shall be as follows:

to properly maintain and manage the subdivided building or land and the common property and keep it in a state of good and serviceable repair;

to determine and impose the Charges to be deposited into the maintenance account for the purposes of proper maintenance and December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 11 management of the subdivided buildings or lands and the common property;

to determine and impose the contribution to the sinking fund to be deposited into the sinking fund account for the purposes of meeting the actual or expected expenditure specified under subsection 51(2);

to effect insurance according to this Act or to insure against such other risks as the proprietors may by special resolution direct;

to comply with any notice or order given or made by the local authority or any competent public authority requiring the abatement of any nuisance on the common property, or ordering repairs or other work to be done in respect of the common property or other improvements to the common property;

to prepare and maintain a strata roll for the subdivided buildings or lands;

to ensure that the accounts required to be maintained by the management corporation under this Act are audited and to provide audited financial statements for the information to its members;

to enforce the by-laws; and

to do such other things as may be expedient or necessary for the proper maintenance and management of the subdivided buildings or lands and the common property.

The powers of the management corporation shall be as follows:

to collect the Charges from the proprietors in proportion to the share units or provisional share units of their respective parcels or provisional blocks; December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin

to collect the contribution to the sinking fund from the proprietors of an amount equivalent to ten percent of the

to authorize expenditure for the carrying out of the maintenance and management of the subdivided buildings or lands and the common property;

to recover from any proprietor any sum expended by the management corporation in respect of that proprietor's parcel in complying with any such notice or order as referred to in paragraph (1)(e);

to purchase, hire or otherwise acquire movable property for use by the proprietors in connection with their use and enjoyment of the common property;

to employ or arrange and secure the services of any person or agent to undertake the maintenance and management of the common property of the subdivided building or land;

subject to subsection 70(2), to make additional by-laws for the proper maintenance and management of the subdivided buildings or lands and the common property;

to borrow moneys required by the management corporation in the exercise of its powers or the performance of its duties;

to secure the repayment of moneys borrowed by it and the payment of interest thereon by negotiable instrument or by a charge of unpaid Charges to the maintenance account (whether already imposed or not), or by a charge of any property vested in it or by a combination of any of those means; and December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin

to do all things reasonably necessary for the performance of its duties under this Act and for the enforcement of the by-laws.

Where the management corporation performs any repairs, work or act that are or is required or authorized by or under this Part or by or under any other written law to perform, whether or not the repairs, work or act were or was performed consequent upon the service on it by any Government or statutory authority of any notice or order, but the repairs, work or act were or was wholly or substantially the liability or the responsibility of the proprietor of a parcel only, or wholly or substantially for the benefit of some of the parcels only, any money expended by the management corporation in performing the repairs, work or act shall-

in the case where the repairs, work or act were or was wholly or substantially the liability or the responsibility of the proprietor of a parcel only, be recoverable by the management corporation in an action in a court of competent jurisdiction or before the Tribunal as a debt due to it jointly and severally from-

the relevant proprietor of the parcel at the time when the repairs, work or act were or was performed; and

(ii) the relevant proprietor of the parcel at the time when the action was commenced; or

in the case where the repairs, work or act were or was wholly or substantially for the benefit of some of the parcels only, or wholly or substantially the liability or the responsibility of the proprietors of some of the parcels only, be recoverable by the management corporation in an action in a court of competent jurisdiction or before the Tribunal as a debt due to it jointly and severally from-

the relevant proprietor of each of such parcels at the time when the repairs, work or act were or was performed; and December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin

(ii) the relevant proprietor of each of such parcels at the time when the action was commenced.

The amount payable by any proprietor and former proprietor under subsection (3) in respect of any parcel shall not be more than the proportion of the debt which the share unit of the parcel then bears to the total share units of all those parcels.

A proprietor of a parcel who is not the proprietor of the parcel at the time when the repairs, work or act referred to in subsection (3) were or was performed shall not be liable to pay the management corporation any amount due under that subsection if he has, at any time on or within twenty-one days before the date he acquired the title or interest in the parcel, made a requisition in writing to the management corporation to inquire about the amount, if any, recoverable by the management corporation under that subsection in respect of the parcel, and the management corporation has-

certified that no amount is recoverable by the management corporation in respect of the parcel; or

not given a reply to the requisition at any time within fourteen days of the date of the service of the requisition.

Where-

the management corporation incurs any expenditure or performs any repairs, work or act that it is required or authorized by or under this Part or by or under any other written law to perform, irrespective of whether or not the expenditure was incurred or the repairs, work or act were or was performed consequent upon the service on it of any notice or order by any Government or statutory authority; and

the expenditure or the repairs, work or act referred to in paragraph (a) were or was rendered necessary by reason of any December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 15 willful or negligent act or omission on the part of, or breach of any provision of its by-laws by, any person or his tenant, lessee, licensee or invitee, the amount of the expenditure of any money expended by the management corporation in performing the repairs, work or act shall be recoverable by it from that person as a debt in an action in any court of competent jurisdiction or before the Tribunal.

The generality of this section shall not be prejudiced by any other provision in this Part conferring a power or imposing a duty on the management corporation [28] “Maintenance” has been defined by the Oxford Engineering Dictionary (Oxford University Press) as: i. The process of preserving a condition or situation of the state of being pressured ii. The provision of financial support for a person’s living expenses [29] The duties in section 59(1)(b)(c)(d) are matched with the powers conferred in section 59(2)(a)(b)(d)(i)(j) of the same Act. In carrying out the duties such as i. to determine and impose the Charges to be deposited into the maintenance account for the purposes of proper maintenance and management of the subdivided buildings or lands and the common property; ii. to determine and impose the contribution to the sinking fund to be deposited into the sinking fund account for the purposes of meeting the actual or December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 16 expected expenditure specified under subsection 51(2); iii. to effect insurance according to this Act or to insure against such other risks as the proprietors may by special resolution direct;” [30] The powers conferred are:

to collect the Charges from the proprietors in proportion to the share units or provisional share units of their respective parcels or provisional blocks;

to collect the contribution to the sinking fund from the proprietors of an amount equivalent to ten percent of the Charges; ....

to recover from any proprietor any sum expended by the management corporation in respect of that proprietor's parcel in complying with any such notice or order as referred to in paragraph (1)(e); ....

to secure the repayment of moneys borrowed by it and the payment of interest thereon by negotiable instrument or by a charge of unpaid Charges to the maintenance account (whether already imposed or not), or by a charge of any property vested in it or by a combination of any of those means; and December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin

to do all things reasonably necessary for the performance of its duties under this Act and for the enforcement of the by-laws. [31] Having ruled earlier that if the Water Bills (or any other Bills) is paid by the Management Corporation to the service/product provider (in this intent appeal, Syarikat Air Johor), then the Management Corporation may sue for the sum owed by the Unit/Parcel Owner. This sum of monies advanced by the Management Corporation to such service/product provider. [32] The reason is simple. The Management Corporation must ensure the water supply is continuously provided by the supplier. To do so, the bills must be paid. This may be done in a few ways. i. The Management Corporations collects from all parcel/unit owners and pays the supplier; or ii. The Management Corporation pays the supplier first and collects the supplier first and collects the sum due from each parcel/unit later; iii. The Management Corporation collects from each parcel/unit owner and pays to the supplier based on the collection. [33] The last position which is option (iii) which is untenable as payment on the water bill is on the whole building usage basis. Those who refused to pay will be a burden to those who do, simply because on a deficit in payment sets in. The supplier may (and usually do) ceased the supply of product (in this case December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 18 water). Everyone including those who pay dutifully will be affected and it is very unjust to them. The law steps in to rectify this and this is one of the many objectives that the Strata Management Act 2013 seeks to achieve. [34] If that happens, then the very duty of maintenance as defined, is no longer possible. [35] Selfish parcel/unit owners who has the enjoyment of the water supply and/or services yet refused to pay are now the main beneficiary of such immoral attitudes. This Court, must not condone these selfishness. [36] The Strata Management Act 2013, come about after the Strata Title Act 1985. [37] It is for this purpose (among others) that the Act seeks to regulate. [38] The word “strata” comes from ancient Latin “stermere” meaning “strew” which later evolved to “stratum” meaning “something spread or laid down”. The modern Latin for “stratum” (for which the origin of the plural “strata” comes from) is “the layer or coat of a substance” [39] In the Cambridge Advanced Learner’s Dictionary and Thesaurus (Cambridge University Press) defined “strata” as “one of the parts or layers into which something is separated”. [40] Strata Titles are a result of Society accepting people coming to line together. It entails a social responsibility in an ethical December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 19 framework be it an organization or individual, that has an obligation to act for the benefit of society at large. The interest of the larger entity (society) versus the individual (a component of that society) must be well balanced, but where they run into conflict, the larger interest of society must be given a higher importance. The individual does not lose its presence but rather the context of its presence must be measured between rights and responsibility. [41] A right is a privilege granted by a governing body that is written into law. The Right may be defended or challenged in a Court of Law. A responsibility on the other hand, is a duty on obligation that is accepted or put into action. [42] Coming back to the responsibilities of the Strata Title Holder (in our instant appeal, the parcel/unit owner) owes it to each and every one in the building (the Management Corporation included). The duty to pay the dues. Apart from the sinking fund/the maintenance fee or any other fee agreed upon including (if the conditions-precedent are met), the Water Bills. [43] This Court would be committing a dereliction of its duties if it does not give effect to the law to ensure the smooth running of the Management and Maintenance of the building (in our instant appeal, the Condominium). [44] I ruled that the Water Bills may be included in the Form 20 and the Notice of Demand so long as the relevant provisions are observed. December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin

The Notice of Demand and the Writ of Summons are contradictory

The Respondent/Plaintiff failed to prove the claims against the Appellant/Defendant [45] It is trite law that for a claim to succeed, there must be proof for two things namely: i. Liability ii. Quantum [46] As ruled earlier, the Liability has been proved. The issue is now whether Quantum has been proved [47] The Learned Counsel for the Appellant/Defendant argued that based on the Notice of Demand and Form 20 dated 15/6/2017, the amount allegedly owed is RM53,065-89 (as of 8/4/2017). [48] In the Notice of Demand and Form 20 dated 11/9/2017, the amount demanded is RM55,060-80 (as at 11/9/2017). [49] In the Writ of Summons dated 5/6/2018, the amount sought/claimed by the Respondent/Plaintiff is RM51,959-66 (as of 30/4/2018). [50] Section 78 Strata Management Act 2013 and Section 59 of the same Act were cited. [51] The Principle of Law is that once liability proved, then the quantum that can be considered by the Court is the lesser of all December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 21 the claims even if the Writ specify a larger sum. The benefit of the doubt must be given to one defending against the action. Subject only, to any restrictions under the law. For example, if a Writ of Summons seeks for RM20,000-00 but after the evidence has been adduced, there is a disparity between the Sum that was sought and the proof that was adduced, as in the example, proof was given on the sum of RM15,000-00 then the Court can only consider RM15,000-00 as the amount that may be granted and not RM20,000-00 that was sought for earlier. [52] The Learned Magistrate found that the amount proven by the Respondent is RM40,959-66 which is less RM10,500-00 (the amount paid by the Appellant/Defendant earlier) from the lower of the sum demanded vide the Notice of Demand and Form 20 (as per their respective dates). [53] It has been argued that these claims were time barred since this sum were more than 12 years (since 2001). [54] With the greatest respect, I disagree that limitation has set in. This is because in a matter where the cause of action is running, it is only when the cause of action has been created and after which the period for the action has lapsed, limitation is said to have set in. In other words, in an ongoing matter, the time is running and will continue to run unless and until the subject matter that created the cause of action has ceased to run. In the instant case, the maintenance fees and Water Bills are still running and have not ceased. Hence, Limitation has not set in and it cannot be pleaded. December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 22 [55] An example is that where parcel/unit owner sold his unit. Then any matter that was running like water bills against him, shall invite the computation of time for purpose of calculation when limitation would set in. The effective date of the transfer of title is the starting point for calculation of time. After the period specified in the Laws (such as Limitation Act, Sarawak, Limitation Ordinance or Government Proceedings Act) sets it, limitation may be pleaded and only then it will operate. [56] A running bill is a bill which is ongoing and accruing with the passage of time. If the parcel/unit owner sold his unit on 1/1/2000, the limitation sets it after 31/12/2005 (for a qualified limitation) and 31/12/2011 (for absolute limitation) unless specified otherwise by law which is for example the latent defect (for 15 years) under the Housing Development (Licensing & Control) Act 2013.

The Octiville Condominium was never maintained properly and in a very bad state of Buildings and poor maintenance by the Management Corporation either the current or previous ones. [57] On the face or arguments, it seemed very plausible and should merit consideration. [58] This Court look the liberty of scrutinising the law and the complaints and found Section 86 (1)(b) and the Strata Management Act 2013 which reads as follows: 86 Appointment of managing agent by Commissioner

Where-December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 23

a situation under paragraph 19(2)(b) occurs; or

after due inquiry has been carried out by the Commissioner or a person appointed by him based on a complaint made to the Commissioner by a purchaser or a proprietor or any other person or body having an interest in a parcel, registered or otherwise, the Commissioner is satisfied that the maintenance and management of a building or land intended for subdivision into parcels or any subdivided building or land and common property is not carried out satisfactorily by the developer, joint management body, management corporation or subsidiary management corporation, as the case may be, the Commissioner may appoint, by written notification, one or more persons to act as managing agent to maintain and manage the building or land intended for subdivision into parcels or any subdivided building or land and the common property for a period to be specified by the Commissioner.

A managing agent appointed under this Part shall enter into a management agreement with the developer, joint management body, management corporation or subsidiary management corporation, as the case may be, to carry out the duties and powers of the developer, joint management body, management corporation or subsidiary management corporation, respectively as provided for under this Act.

The managing agent shall be entitled to be paid such remuneration or fees as may be agreed upon between the managing agent and the developer, joint management body, management corporation or subsidiary management corporation, as the case may be, with the concurrence of the Commissioner, and such remuneration or fees shall be charged to the maintenance account. [59] This is an avenue for disgruntled parcel/unit owners to demand a accountability for the use of the money paid by them to the December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 24 Management Corporation, through the Commissioner for Buildings, appointed pursuant to Section 4 of the same Act. [60] This is a statutory avenue and does not deprive such aggrieved parties of Common Law remedies such as counter claims or mandamus or certiorari (to set aside Form 20). [61] After perusing over the Appeal Rewards and the submissions of parties, I found the Appellant/Defendant did not avail himself either the statutory or Common Law Remedies. [62] The Court wishes to state in no uncertain under the law that the fees (due and payable) as enumerated by statute must be paid. Under no circumstances can the aggrieved party resort to non payment of what is due and payable. The failure to pay what is due and payable may result in legal actions taken against them. [63] I have perused over the cause papers and the written submissions of parties as well as heard the Learned Counsels of all parties and I found no appealable error committed by the Learned Magistrate. I therefore dismissed this appeal with cost and reaffirmed the decision of the Learned Magistrate. [64] Dated at Johor Bahru, in the State of Johore, this day the 22nd December 2019. t.t AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Johor Bahru Johor Darul Ta’zim December 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 25 Curia Advisari Vult Counsels: For The Appellant : Ong Chee Yong For the Respondent : Rachel Chacko a/p Thomas Chacko Solicitors : For the Appellant Messrs C.Y Ong & Co Suite 80.05 & 8.06, 8th Floor City Plaza Jalan Tebrau 80250 Johor Bahru Johor. For The Respondent: Messrs Tea Kelvin Kang & Co Suite 8-1, Level 8, Menara Pelangi Jalan Kuning Taman Pelangi 80450 Johor Bahru Johor. Hearing Date : 14 November 2019. Decision Date : 22 December 2019.